When Parents Disagree: Practical S S t trategies for Advocates t i f Ad t Brian J. McLaughlin, Esq. B i J M L hli E Law Offices of Brian J. McLaughlin Mary W. S y S heridan, Esq. , q Law Office of Mary W. S heridan, Esq.
I Issues we will cover ill • • Intake Intake • Basic litigation process • • Issues involving child support Issues involving child support • Best interest of the child-visitation plans, etc. • • Custody and unmarried parents Custody and unmarried parents • S tudent records • • Transition planning Transition planning • Child vision • • Guardianship Guardianship
INTAKE S INTAKE S UGGES UGGES TIONS TIONS � Married to child’s other parent? M i d hild’ h ? � Are there any actions pending between you and the other parent(divorce contempt modification)? other parent(divorce, contempt, modification)? � Any orders in place regarding custody and parenting? � Restraining Orders? � Anything need to know about other parent?
M Married Parents i d P t � How is communication between parents? H i i i b ? � Do you differ in opinion frequently about services and treatment for your child? treatment for your child? � How do you usually navigate this? � Is there anyone you consult with when you can’ t come to an agreement?
B Basic litigation process i liti ti � File complaint il l i � Motion for temporary orders � Discovery process � Divorce process focuses on best interest of the child p � If custody is an issue, a GAL may be appointed to report to the court or the judge may communicate with parents � Settlement or trial
C Custody t d � LEGAL vs. PHYS LEGAL PHYS ICAL ICAL � Joint legal custody is norm � MGL c. 208 s. 31 � Joint Physical Custody + Parents living in different y C y g districts � 603 CMR 28.10
J i t L Joint Legal Custody l C t d B Both parents have right to: h h i h � Be members of their child’s IEP team � Be given notice of team meetings � Exercise right to due process g p � Receive progress reports � Can agree or disagree to IEP/ placement C di IEP/ l
Child Child ‐ support t � Relevant law is 2009 child ‐ support guidelines l l i 2009 hild id li � Based on mom having primary custody and dad with visitation � Both parties submit financial statements and then their incomes are put into a formula https://wfb dorstate ma us/DORCommon/Worksheets/CSE/G https://wfb.dor.state.ma.us/DORCommon/Worksheets/CSE/G uidelines.aspx
Child S Child S upport Guidelines t G id li � If the parties will share physical custody the guidelines If h i ill h h i l d h id li are calculated both ways and the difference is paid but one parent to the other � Guidelines are specific about what child support is intended to cover � If there are expenses that are not covered by child support, BUT the parents agree to share them, this can be part of the separation agreement be part of the separation agreement
When the guidelines don ’ t fit ’ t fit Wh th id li d � Each party may present evidence as to why the guidelines do h id h h id li d not apply � Factors in support of deviation � Factors in support of deviation � Court must make specific findings as to why the guidelines are not applicable not applicable. � a child has special needs or aptitudes; a child has extraordinary medical or other expenses (advocate’s fees)
What does “ best interest ” actually mean � Chapter 209, sec.28 � Judges have broad discretion in determining the best interests of the child. See Bak v. Bak , 24 Mass. App. Ct. 608 (1987); see also Freedman v. Freedman , 49 Mass. App. Ct. 519, 521 (2000).
Factors for considering “ best interests of the child ” child � Needs of the child � Age sex and stage of development of the child � Age, sex and stage of development of the child � Physical or mental health needs � Preservation of child ’ s routine � Child ’ s ties to school and community � Child s ties to school and community � Special relationships with extended family or half siblings � Child ’ s present state of adjustment in home, school, and community community � Abilities of both parents � Mental and physical health of the parents Mental and physical health of the parents � Historically who has been the primary caretaker � Parent ’ s work schedule or commitments outside the home
P Parenting Plan ti Pl � What is a parenting plan? h i i l ? ‐ A parenting plan is a written document which dictates the visitation schedule for your child Things to consider in visitation schedule for your child. Things to consider in parenting plans include: holiday schedules, pick ‐ up and drop ‐ off times, child ’ s birthdays, vacation schedules, etc. PRACTICE NOTE: It could be helpful for advocates to review parenting plan in the initial intake process
Why is this different for disabled children? hild ? � Consistency � Consistency � For folks with disabilities consistency is key, in particular for folks with autism. Without a consistent routine, the child may struggle. � Double of everything y g In particular for folks with physical disabilities, you ’ ll need to have double of � everything or have to trek everything with you: wheelchair charger, ramps on new home and any other medical equipment � Potential for disinvolved parent having to re engage � Potential for disinvolved parent having to re ‐ engage There may be one parent whose more involved in the child ’ s day to day needs. � The “ disinvolved parent ” may need to reengage with the child and learn about the child ’ s needs and behaviors � Communication � Parents need to be able to communicate with each other. This is the case in any arrangement, however, with disabled children, particularly those with severe medical issues or behaviors, parents need to remain on the same page and in contact with each other and in contact with each other
P Practice Note ti N t � Look at Parenting Plan provisions L k P i Pl i i � Court Records?
C Custody and Unmarried Parents t d d U i d P t � Unmarried parents often present the most difficult cases and i d f h diffi l d challenges � These cases are more likely to involve one parent who is less � These cases are more likely to involve one parent who is less invested and involved in the child ’ s life, but still may cause delays in finalizing a child ’ s educational plans etc.
C Custody and Unmarried Parents t d d U i d P t � The first step in a case with unmarried parents is to � The first step in a case with unmarried parents is to determine paternity � Then a court may award custody pursuant to M.G.L. c. y y p 209C, § 10 � It is more likely that the court will award one parent custody in cases with unmarried parents. Joint custody t d i ith i d t J i t t d may be granted upon agreement between the parties or if the parties have demonstrated ability to parent together together. � If there has been no adjudication of paternity, the mother has custody
C Custody and Unmarried Parents t d d U i d P t � M.G.L. c. 209C s. 10(b) M G L 209C 10(b) � Presumption of custody with the mother � Ramifications
Student Records M.G.L. c. 71, § 34H and 603 CMR 23.00 � non custodial parent has a right to review student records � non ‐ custodial parent has a right to review student records based on a written request to school principal, unless: � the parent has been denied legal custody or has been ordered to supervised visitation, based on a threat to the safety of the student and i d i it ti b d th t t th f t f th t d t d the threat is specifically noted in the order pertaining to custody or supervised visitation, or � the parent has been denied visitation or � the parent has been denied visitation, or � the parent's access to the student has been restricted by a temporary or permanent protective order, unless the protective order (or any subsequent order modifying the protective order) specifically allows subsequent order modifying the protective order) specifically allows access to the information contained in the student record, or � there is an order of a probate and family court judge which prohibits the distribution of student records to the parent distribution of student records to the parent.
St d Student Records continued t R d ti d � “ Parent shall have the right to review student records ” should “ d ” h h ll h h i h i d ld be included in a separation agreement to guarantee parent access to records � Even though it is the law, the standard language in the separation agreement will ensure that the parent has access � Practically speaking, the separation agreement governs the issue
209A R 209A Restraining Orders t i i O d � One parent against the other O i h h � Order prohibiting contact w child operates to restrict access to records access to records � Practice Note: Team meetings via phone conference
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